The static and legalistic conception of federalism, that is to say the one which advocates respect for the essential principles of autonomy and participation, has been overtaken by a dynamic conception, considering the coordination of policies and therefore cooperation.
The phenomenons of globalization and internationalization of relations have developped cooperation in multi-levels. Cooperation can be defined as intergovernmental relations with the aim of reaching common goals. It implies the participation of several spheres of government so as to implement jointed or coordinated programs. In the federal systems, cooperation is a key of intergovernmental relations. But it is not necessary organized by the federal constitution. In most cases, cooperation is conducted by informal practices and conducts to agreement wich is applyed in legal measures. Indeed, the special feature of cooperation is that’s a technique to reach a goal or to resolve a problem so it can’t be an institutionnalized system. Every case of cooperation is specific. So the constitutionalization of cooperation procedure is not a good way to make cooperation efficient. Moreover, it depends on legislative and financial balance of powers that are usually not in conformity with the constitution but variable because of the powers overlapping. Finally, cooperation can be horizontal or vertical,which means between member states of a federation or between member states and the federal government, according to the goal to reach or the problem to resolve. So cooperation must have a freedom to take the form that it wants, according to every situation. Cooperation doesn’t need to be predicted or organized by the constitution to be set up.
This paper wants to show that constitutional setting have generally a weak influence on cooperation because of the importance to give room for maneuver to the federal and state governments.
I – Importance and dangers of the rules organizing cooperation in the constitutional setting
Cooperation is one of the fundamental principles of federalism. Indeed, these principles are autonomy, separation, participation and cooperation. Nevertheless, this principle is not necessary formally present in the constitution.
This cooperation is not only achieved through ministers. It also occurs informally, through bodies or committees composed of members of the legislative branch or civil servants, which may also include ministers. They meet regularly in intergovernmental meetings. It should be noted, following Ronald Watts, that in federations in which the legislative and executive powers are separated at each level of government (such as in the United States, Canada, and Brazil), « the channels of intergovernmental relations are more dispersed, constituting numerous, often intersecting branches between senior executives, administrators, and legislators of the different levels of government »[1]. In this type of system, political pressure is generally significant on the federal legislature, particularly from representatives of the member states, whether they are civil servants, representatives of the executive, or the legislative branch. Interconnections between different levels of government are therefore frequent and have a significant impact on decision-making processes.
If some constitutions don’t quote the notion of cooperation literally as United States or Canadian constitutions, they foresee cooperation. The brazilian constitution of 1988, for example, foresee cooperation in a general way but also in specific areas like education, health, security or the social field (art. 23 XII; art. 30 VI and VII). The delegation of responsabilities to municipalities or to the states by the federal constitution, allowed an important development of cooperation from an horizontal and also vertical point of view. But cooperation needs a complementary law to be executed. For example, the complementary law n° 9394/1996 says that the federal government, in cooperation with states and municipalities, has jurisdiction to finance institutions as federal universities. For the health care national system (articles 202 and 203) the action must be decentralized but the federal government coordinate actions of various spheres of government to make general rules.
From the point of view of cross-border cooperation between regions or municipalities, the Quebec case shows that cooperation can exist without the federal government. Indeed, the constitution and the case law of the supreme court of Canada don’t prevent that provinces cooperate with each other or foreign components. So Quebec Province passed agreements with France, for example, to recognize common actions or common trade.
But, we must admit that even if a consitution text doesn’t cite cooperation litteraly, it can exist by the practice or the interpretation of the constitutional or legislative setting. In the United States, cooperation raised officially in the 1930’s from a vertical and a horizontal points of view, between members states and local governments. It has been judiciary recognized by two decision of the Supreme court (National Labor Relations Board vs. Jones and Laughlin Steel Corporation 301 U.S. 1 (1937) and Steward Machine Company v. Davis , 301 U.S. 548 (1937)). Nevertheless, it always existed a form of cooperation. Indeed, the federal constitution, in the article 1 paragraph 10, allows every state to conclude agreements with another states if the Congres give his premission but the federal government didn’t wait this period to use the constitution to implement his responsabilities in the commerce field, for example. The Interstate Commerce Act was adopted in 1887 to give to the Congress the possibility to regulate and control the trade in the states. Then, the federal responsabilities are gone to be extended to health, education, town and county planning and agriculture. So during the XXth century, cooperation changed to coercion which is a specific form of cooperation in which one order of government has got a dominant position and imposes conditions to conclude agreement more than reaching a trade off.
From this point of view, one important element for cooperation if it’s organized by the federal text is first of all, to consider that all of the spheres participating are in the same level (relation of equality) and it is not a hierarchical position between them. Indeed, the federal government doesn’t have a upper role, leading or deciding for all the governments involved in the cooperation. Unfortunately, even if the constitution doesn’t give a upper role to any actor, the federal government often reproducts the situation of the legislative process and has a bigger weight. The US are an example of this situation, or Brazil too, in some cases because of the financial superiority of the federal government. The difficulties for the state or local governments to finance programs make to be dependent of the grants in aid of the federal government. Indeed, the federal government takes a leading situation in cooperation. Moreover, since the Covid-19 pandemic, the federal governments in all the federations in th world have increase and strengthen their influence within their federations. Even so, this leading role is not a good way to respect the federative principles like autonomy and separation.
II – The key to cooperation : the financial freedom of the components of a national country allowed by the constitutional setting
In federal or in unitary systems (Canada, Brazil, US, or France), we can consider that the real importance of development of cooperation is the freedom given to the components (state members or regional entities). The experience of these countries shows that cooperation had been created by the components even if the national or federal governments have allowed the cooperation. But the most important to cooperation is that the state or local government have a financial power to apply the decisions taken during the cooperation process. This financial power is the condition to negociate and have a legitimate influence to negociate. Without financial power, the state and local government depend on federal grants. This is a common situation in unitary countries but not in the federal countries.
Yet the distribution of financial power is generally not organized by the federal constitution or just in general terms. Unfortunately, the financial dependence of state and local governments are a more and more common situation in federalist systems. The US, Brazil or Canada federations are, in various ways, an illustration of that. In Canada, cooperation is realized by informal meetings. They bring together the prime ministers of each province and of the Canada, the provincial ministers or members of provincial administrations. The canadian constitution gives an important financial power to the federal government, in particular, with the « spending clause » which allows to act in a provincial authority if it doesn’t take a legislative or reglementary act. In Brazil, from 1994 to 2004, the federal government limited the spending power of the states by a control of management and obligating the states and local governments to spend 25% of their incomes in education and 15% in health. So they were not free to spend their money as they wanted.
So we can see that cooperation formal procedures don’t need to be foreseen by constitutional setting and that this setting have generally a weak influence on cooperation. If the constitution quote cooperation as a important procedure, it has to protect the state and local governments liberty to avoid the federal government taking the power in the cooperation process. The most important is that constitutional setting leaves freedom to the states and local governments to organize cooperation because they are the main operators of cooperation. But to implement cooperation, the various government need to have the financial power to make this cooperation effective.
[1] Ronald Watts, Comparing Federal Systems, 2d éd., Queen‘s University, by McGill-Queen‘s University Press, Montreal & Kingston • London • Ithaca, 2002, p. 61.
Par Rémi BARRUÉ-BELOU
IRDEIC, école de droit de Toulouse, Université Toulouse Capitole